In Re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005): While investigating the Valerie Plame affair, a grand jury issued subpoenas to journalists Judith Miller and Matthew Cooper regarding their communications with Scooter Libby. Refusing to testify before the grand jury, Miller spent ninety days in jail for civil contempt. The D.C. Circuit unanimously upheld the contempt decision. Judge Tatel concurred, suggesting that there is a federal common law, qualified journalist privilege, but that it was not met in this case because the grand jury’s need for the journalists’ testimony outweighed the burden of disclosure on newsgathering. Borrowing Tatel’s suggestion for a federal, qualified journalist privilege, the Free Flow of Information Act is now under consideration in Congress.

Massachusetts v. Environmental Protection Agency, 415 F.3d 50 (D.C. Cir. 2005): The D.C. Circuit held that the United States Environmental Protection Agency (EPA) properly had declined to exercise its authority to regulate greenhouse gas emissions from motor vehicles. Later vindicated by the Supreme Court, Judge Tatel’s dissent argued that the EPA had failed to comply with the mandate of the Clean Air Act when it had declined to issue regulations without giving a statutorily based justification for not making a finding of environmental endangerment.

Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003): Denying a Freedom of Information Act (FOIA) request seeking the names of post-9/11 detainees and their attorneys, the D.C. Circuit, articulating what would become known as the Mosaic theory, held that this information was within FOIA’s law enforcement exemption. Judge Tatel dissented, saying the “court’s uncritical deference to the government’s vague, poorly explained arguments for withholding [information] as well as its willingness to fill in the factual and logical gaps in the government’s case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies.” Moreover, Judge Tatel noted, there was “ample evidence of agency wrongdoing. The record includes [many public documents] reporting alleged governmental abuses such as holding detainees for long periods without allowing them to seek or communicate with counsel and without charging them.... History, moreover, is full of examples of situations in which just these sorts of allegations led to the discovery of serious government wrongdoing.” Litigation related to the post-9/11 detainment of hundreds of Arab and Muslim immigrants and citizens remains pending in many courts.

Nextwave Personal Communications v. Federal Communications Commission, 254 F.3d 130 (D.C. Cir. 2001): The FCC cancelled the licenses of a telecommunications company that had declared bankruptcy and failed to make installment payments for the license. On appeal, the D.C. Circuit held that the installment payments constituted dischargeable debts under the Bankruptcy Code. As a result, the FCC could not cancel the licenses simply for Nextwave’s failure to make those payments, and instead had to proceed like a normal creditor. Eight justices of the Supreme Court voted to affirm the court’s decision.

In re: Sealed Case, 124 F.3d 230 (D.C. Cir. 1997): In this case, a grand jury subpoenaed testimony from an attorney on the contents of his discussions with and work on behalf of a deceased client (Vince Foster). The attorney and his law firm successfully moved to quash the subpoenas in the district court, but the D.C. Circuit reversed, creating a balancing test to determine when communications are privileged in cases such as this. In a dissenting opinion, Judge Tatel wrote that the common law’s attorney-client privilege survives the death of the client. In a 6-3 decision (Swidler & Berlin v. United States, 524 U.S. 399), the Supreme Court agreed.